OKLAHOMA CITY — In our growing and fast-changing world, opportunities to preserve scenic open space, protect wildlife habitat and safeguard natural resources for future generations are fleeting.
I see the need daily as the leader of a nonprofit land trust that works to conserve environmentally valuable property.
The biggest challenge for conservation groups like mine is the lack of available funding from both government and private sources.
Unfortunately, the Internal Revenue Service (IRS) made the situation worse with recent guidance that threatens to chill an attractive source of private conservation financing.
At issue is how the IRS treats certain conservation easement donations. A conservation easement is a voluntary, legally binding agreement that forever restricts a property’s future development, making it one of the most powerful and effective conservation tools available.
The land under easement remains privately owned, and activities like farming, ranching, and hunting may often continue. My organization, like many other land trusts, primarily preserves land through the acquisition and donation of conservation easements.
The tax code provides landowners who donate an easement with a tax deduction equal to its fair market value.
Since the late 1970s, the availability of this deduction has helped conserve millions of acres of American land. In 2015, Congress passed a bipartisan bill permanently increasing the tax incentives for conservation easements with the goal of encouraging more landowners to donate.
However, the IRS recently took steps that will limit access to this conservation tool when the landowner is a partnership or pass-through entity. In the closing months of the Obama administration, IRS officials designated certain conservation easement donations by partnerships as “listed transactions.”
While this guidance does not invalidate any compliant conservation easement donations, it unfairly labels these already highly disclosed charitable contributions as “tax avoidance transactions.”
The IRS rightly guards against taxpayers claiming overvalued tax deductions based on faulty appraisals. Other conservation leaders and I share that goal.
Fortunately, there is no evidence that abuses of valuation with easement donations are widespread nor more likely to come from a particular type of donor, whether a wealthy landowner, a family partnership or a partnership of unrelated individuals.
That’s why it is unfair that the IRS is stigmatizing a certain class of easement donors, namely partnerships, by retroactively applying onerous and duplicative reporting requirements going all the way back to 2010.
The expansive reach of this guidance and its hostility toward landowners willing to give up property development rights in perpetuity will drive future donors away, effectively repealing Congressional intent to extend the tax incentive.
Conservation is expensive. In an era when government cannot finance the cost of land preservation alone, significant new sources of private funding are required. Whether the land being conserved is owned by an individual, a family partnership or an investment partnership, all should play an important role advancing needed conservation projects. These easement donations allow ecologically valuable land to be conserved permanently and cost the government less than purchasing and managing the land with federal or state funds.
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While conservation is never a landowner’s most profitable option for land use, we must make it at least an economically viable alternative to development if our country is truly committed to protecting precious natural resources.
The IRS guidance fails to address the real problem at hand – over-valuation of appraisals – and should be suspended. My land trust stands ready to work with Congress, the IRS and other conservation stakeholders to develop meaningful solutions that address potential over valuation and do so without excluding legitimate funding sources.
Without government action to solve this problem, innovative conservation solutions may simply disappear along with more greenspace.
Drew D. Troyer is chairman of the board at the Compatible Lands Foundation, a nonprofit land trust headquartered in Oklahoma that oversees conservation easements in six states. Readers may write him at CLF, 1305 E. 15th St., Suite 202, Tulsa, O K 74120
